1. This is an application under Section 561-A, Cr. P. C. for a review and modification of sentence passed on the two petitioners by this Court in Criminal Revision No. 165 of 1963 by the judgment dated 6th September, 1963.
2. The two petitioners were tried for an offence under Section 380 and 454 I.P.C. for housebreaking and theft of some ornaments and cash from the house of a prostitute named Adiguni (P. W. 1) in Ganjam district. The trying Magistrate, by his judgment dated 31st March 1962 sentenced them to undergo rigorous imprisonment for one-year each, on each count, and also directed that the sentences should run consecutively. On appeal, the learned Sessions Judge of Berhampur by his judgment dated 22nd March 1963, maintained the conviction and sentence but directed that the sentences should run concurrently. The petitioners then preferred a Criminal Revision (Cr. Revision No. 265 of 1963) before this Court, which disposed of it on merits, by its judgment dated 6th September 1963. The High Court maintained the conviction of the two petitioners but further reduced the sentences to six months each (the sentences to run concurrently). This Court further observed that though the petitioners were young men aged about 20 years they committed the offence with deliberation for a dishonest purpose and that therefore the case should not be dealt with leniently, though in view of their youth the sentence might be reduced.
3. Unfortunately the attention of the learned Sessions Judge who heard the appeal and of this Court while hearing the aforesaid Criminal Revision, was not invited to the fact that the Probation of Offenders Act, 1958 had been extended to the district of Ganjam with effect from 1st December 1962--by the Government of Orissa, Home Department Notification No. 27941--Jails dated 30th November 1962. Counsel for the petitioners also did rot urge before these two Courts that Section 6 of the said Act should be applied.
4. After the disposal of the Criminal Revision by this Court counsel for the petitioners became aware of the fact that the said Act had already been brought into force in the District of Ganjam and hence applied to this Court under Section 561-A Cr. P. C. with request to modify the sentence and deal with the two petitioners in accordance with provisions of Section 6 of that Act.
5. Two important questions arise for consideration now. Firstly, as the said Act was not brought into force in Ganjam district on the. date on which the offence was committed, namely 28th October 1959 (though it had come into force prior to the date of delivery of the Judgment by the appellate Court, viz., the Sessions Judge, viz., 22nd March 1963), will it be proper either for the appellate Court or for the Court of Revision (High Court) to apply the provisions of that Act thereby giving limited retrospective effect to the Act. Secondly, assuming that such retrospective effect should be given, will it be proper for this court to exercise its inherent powers recognised in Section 561-A Cr. P. C. for review and modification of the sentences imposed by it while disposing of the Criminal Revision.
6. So far as the first question is concerned Mr. Murty seems to be right in his contention that the Act should be given limited retrospective effect and if it is found to have come into force in a particular area on the date on which either the appellate Court or the Court of Revision has heard the appeal or revision, as the case may be, that Court has jurisdiction to apply the provisions of the Act. This view is supported by the language used in Section 31(1) which is as fallows:
'Notwithstanding anything contained in the Code or In any other law, an order under this Act may be made by any court empowered to try and sentence the offender to imprisonment and also by the High Court or any other Court when the case comes before it on appeal or revision.'
The legislature by using the words 'when the case comes up before it' seems to have enacted 'that the relevant date for the purpose of applying the Act is not the date on which the offence was committed but the date on which the appeal or revision, as the case may be, comes up for consideration before the appropriate Court. This view is supported by the decision of the Rajasthan High Court in Tikam Das v. State, Crl. Revn. No. 31 of 1962, D/- 1-2-1962 (Raj), where though the said Act had not come into force on the date of commission of the offence, it was nevertheless held that the provisions of the Act may be applied if it had been brought into force on the date OB which the revision was heard by the High Court.
7. But the second question presents considerable difficulty. Mr. Murty contended that from the date on which the Probation of Offenders Act was brought into-force a Court trying the accused who is less than 21 yean of age for an offence which is not punishable with imprisonment for life, is bound to comply with the provisions of Section 6 of that Act, and that before deciding to send such an accused person to Jail it was bound to call for a report from the Probation Officer as required by Sub-section (2) of that section, and then act in accordance with the provisions of the Act. Hence it was urged that where the mandatory provisions of a statute have been over-looked by the Court of appeal or revision due to oversight, this Court should exercise its inherent powers under Section 561-A Cr. P. C. for the ends of justice. For this purpose Mr. Murty relied on a series of decisions especially of the Allahabad High Court reported in Sri Ram v. Emperor, AIR 1948 All 106, Chandrika v. Rex, AIR 1949 All 176 and Jagannath Singh v. Bidhesht, AIR 1955 All 712; and also on the decisions of some other High Courts, namely Bhajwandas Babulal v. State, AIR 1954 Madh-B. 10, Emperor v. Shiva Datta, AIR 1928 Oudh 402 and Mathra Das v. Emperor, AIR 1927 Lah 139.
8. In my opinion, the decision of the Supreme Court, in U.J. S. Chopra v. State of Bombay, (S) AIR 1955 SC 633 has clarified the legal position and has made it clear that the judgment of the High Court in revision is final and cannot be modified or altered. Doubtless the main question for consideration in that case was whether after the summary dismissal by the High Court of an appeal filed by the accused person, against the judgment of conviction it was open to the same accused to challenge the conviction by virtue of Sub-section (6) of Section 439 Cr. P. C. when the State applies for enhancement of the sentence. While answering this question in the affirmative the learn-' ed Chief Justice of India discussed at a great length the true scope of Section 369 Cr. P. C. and 430 Cr. P. C. and observed as follows: (at p. 643)-
'It is also true that although the revisional power is not expressly or in terms controlled either by Section 369 or 430, the general principle of finality of judgments attaches to the decision or order of the High Court passed in exercise of its revisional powers. But this finality, statutory or general, extends to what is actually decided by the Court and no further.'
It is true that in that decision their Lordships were not concerned with the inherent powers of the High Court recognised in Section 561-A Cr. P. C. but the language used is very clear and unambiguous: and once it is held by the highest court that even a judgment of a High Court in exercise of its revisions jurisdiction, in criminal matter, is final, in respect of what is actually decided by that Court, it will not be proper to hold that this finality does not in any way affect the power of this Court under Section 561-A, Cr. P. C. It was contended however that the petitioners were merely asking for modification of the sentence in view of the provisions of the Act and not for altering the judgment. But it is difficult to appreciate how the last portion of the judgment dealing with the sentence could be dissociated from the other portions and how it can be held that though that portion of the judgment of the High Court in revision which deals with the merits of the case may be final the last paragraph dealing with the sentence may be reviewed or altered in exercise of the powers under Section 561-A Cr. P. C.
9. The same question came up for consideration before this Court in Namdeo Sindhi v. State, AIR 1958 Orissa 20 and it was held following the aforesaid decision of the Supreme Court that it will not be proper for the High Court to review its own order passed while disposing of a Criminal Revision petition on an earlier occasion. Mr. Murty however, urged that this view might require reconsideration.
10. The subsequent decisions of the High Court after the pronouncement of the aforesaid judgment of the Supreme Court in (S) AIR 1955 SC 633 may be now noticed.
In Raj Narain v. State, AIR 1959 All 315 (FB), divergent views were expressed by the Judges of that High Court. Mootham, C.J. who was in a minority, held, following the aforesaid observations of their Lordships of the Supreme Court that once a High Court has disposed of a criminal revision, it cannot revoke, review or recall or alter the same in exercise of its powers under Section 561-A Cr. P. C. The other two judges who constituted the majority however took a contrary view and Dayal, J (as he then was) distinguished the Supreme Court decision in the following terms (p. 326)
'Certain observations have been made in the coursa of judgments with respect to the competence of the High Court to revise or to recall the orders passed; but these observations are to be taken in the context on the point for determination, and urged for consideration before the Supreme Court. I do not consider these observations to refer to the inherent power of the High Court, to pass suitable orders to secure the ends of justice, even if those orders amount to reviewing or recalling of an earlier order.'
With great respect, I am unable to appreciate how the clear observations of the Supreme Court, quoted above about the finality of a judgment passed by the High Court in a Criminal Revision can be distinguished on the ground that they did not take into account the inherent power of the High Court. The question as to whether the judgment of a High Court, passed in appeal, could be revised or reviewed was directly in issue before the Supreme Court and when they have stated clearly that even a judgment passed or an order passed in a criminal revision should be given the same finality as a judgment or order passed in an appeal on general principles these observations will necessarily apply in examining the inherent powers of the High Court. It is well known that even an obiter of the Supreme Court or the Privy Council is binding on all subordinate courts--see the recent pronouncement of the Gujarat High Court in Jaswantalal v. Nicchabhai, (1964) 5 Guj LR 161 (Para 20) : (AIR 1964-Guj 283 Para 22).
11. Mr. Murty then relied on Baijnath Kurmi v. State, AIR 1961 Pat 138 and in re Biyamma, AIR 1963 Mys 326 but in both these decisions the observations of the Supreme Court in the case cited above have not been noticed. On the other hand, apart from the Orissa Judgment mentioned, there are judgments of some other High Courts in which it has been held that the inherent powsrs cannot be invoked to review, or alter the judgment delivered in a criminal revision -- see Hoshiar Singh v. State, AIR 1958 Punj 312; Kalipada Jana v. Sarbeswar Panda, AIR 1958 Cal 568; Dhanna v. State of Rajasthan, AIR 1963. Raj 104 and in re Anthony Doss, (1963) 1 Mad LJ 393. Thus excepting the majority view in the Full Bench decision of the Allahabad High Court in AIR 1959 All 315 (FB) there is no decision after 1953 in which, after considering the observations of the Supreme Court in the aforesaid case, any High Court held that a judgment or order passed in a criminal revision may be reviewed or revised in exercise of the inherent power of the Court, The weight of authority is definitely in favour of the contrary view. Hence I see no reason to differ from the view taken in AIR 1958 Orissa p. 20, and refer this case to larger Bench. I accordingly dismiss this petition as not maintainable. The sentence passed by this Court in Criminal Revision No. 265 of 1963 remains unmodified and should be executed promptly.